How a Bizarre Catch-22 Has Gutted Disability Protection in America

When Steven Orr accepted a pharmacist position with Wal-Mart in 1998, he never expected that his diabetes would eventually trigger his dismissal. Orr, who was diagnosed with type-two diabetes in 1987, had been successfully treating his illness for the last eleven years. By injecting insulin three times a day, he had managed to normalize his glucose levels and maintain good health and a stable job. For this reason, he didn't consider his disability to be an 'occupational hazard.'

In fact, before he began working for Wal-Mart, Orr disclosed his condition to his regional manager along with his sole medical requirement; he needed to take a regularly scheduled 30-minute break for lunch every day. By eating at a consistent time, Orr dramatically decreased the risk of his glucose levels becoming too high (hyperglycemic) or too low (hypoglycemic). Wal-Mart agreed to this condition, and Orr began work in January of 1998. However, six weeks later, Orr's regional manager was replaced. His successor refused to grant Orr the same privilege.

Forced to eat whenever a lull in business allowed him, Orr's blood glucose levels vacillated erratically. Extreme hypoglycemia can be a fatal condition, and by not taking a regularly scheduled lunch he was seriously jeopardizing his health. Despite stressing this fact to his supervisor, Orr was still refused the privilege of a half-hour lunch break. In late May, worried about his safety, he resumed closing the pharmacy for a half-hour in order to eat. Within days, his employment was terminated by Wal-Mart. According to Orr, Wal-Mart made no effort to hide the reason for his termination. "When I was fired, I was told flat out that it was because I had diabetes," he recently testified to Congress.

Surprisingly, it's not a claim that Wal-Mart refuted. In fact, when Orr filed suit under the Americans with Disabilities Act (ADA), Wal-Mart didn't deny his termination was directly related to his disability. Instead, they argued that Orr's diabetes didn't meet the standard for disability protection, because he was able to mitigate his illness with medication. Like more than 90% of employers who face a disability lawsuit, Wal-Mart won.

Orr's case is just one of many that disability advocates and lawmakers cite as evidence that the ADA needs to be re-written to restore its original intent. When Congress passed the ADA in 1990 it was with strong support from both Democrats and Republicans, who believed that a Federal law similar to that of the Civil Rights Act of 1965 was needed to protect America's disabled from discriminatory practices. However, due to a strict legal interpretation by the courts, the statute has been unable to protect many of the individuals it was intended to.

The text of the ADA prohibitions prohibits discrimination against individuals with disabilities and defines "disability" as

(A) A physical or mental impairment that substantially limits one or more major life activities

(B) A record of such an impairment; or

(C) Being regarded as having such impairment.

Although this language seems all encompassing, the Supreme Court has decided that the terms "substantially limits" and "major life activities" need to be interpreted strictly to create a demanding standard for qualifying as disabled. (Toyota Motor Manufacturing Kentucky, Inc. v. Williams 532 U.S. 184, 197 (2002)).

The result is a virtual Catch-22 for the disabled. Individuals who are able to mitigate the symptoms of their illnesses with medication, prosthetics, diet, or other devices may gain the ability to work, but simultaneously lose their protections under the ADA if the courts perceive their 'major life activities' to not be limited enough. Many employees with epilepsy, diabetes, cancer, HIV, muscular dystrophy and multiple sclerosis have been stripped of ADA protections and unfortunately, as medicine advances, many more could be discriminated against as well.

Imagine an amputee getting an advanced prosthetic leg, using his or her new-found mobility to find a job, and then being fired because he or she can't walk fast enough. With the current interpretation of the ADA intact such an individual would likely not be protected, and such discrimination could legally occur.

Despite what appears to be an unfair standard, the Supreme Court can't be blamed for strictly interpreting the ADA; it's simply their job to do so. Therefore, the only way to restore disability protections to thousands of affected Americans is to revise the ADA, which is exactly what Congress has been attempting to do.

On Thursday, November 15, the first of a round of Congressional hearings was held in support of H.R. 3195/S. 1881, a piece of legislation co-proposed by Democratic Majority Leader Steny Hoyer (D-MD) and Congressman James Sesenbreener (R-WI) that will re-instate the intended power and protections of the ADA. Unlike almost everything else in Washington these days, the amendment appears to have bi-partisan support. In fact, it currently has 232 co-sponsors in the House.

However, there are a multitude of corporate employers, like Wal-Mart, who will invest hundreds of thousands of dollars in corporate lobbyists and propaganda to either defeat or water down the amendment. For this reason, it's vital that those who believe in the unfairness of disability discrimination show their support by contacting their elected leaders.

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